A judge will decide by the end of the week whether to toss out key evidence in the drunken driving arrest of a Macomb County judge's girlfriend while he and two of his minor children were in the vehicle.

Judge Debra Nance of 46th District Court in Southfield said she will issue a decision "by Friday" in the case against Brenda Conway, 50, of Troy, girlfriend of Macomb Circuit Judge Richard Caretti.

Conway's defense attorneys contended in court Monday that the arresting police officer, Steven Thompson, did not have probable cause to investigate Conway because police received the allegation of Conway's alleged erratic driving second-hand, and he was supposed to merely conduct a "welfare check" on the children.

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But Judge Nancy pointed out to defense attorney Andrew Abood during arguments that Thompson told Conway when he first approached her in her Volkswagen SUV, "It was reported you were intoxicated," according to an audio recording of the arrest played in court.

"Isn't that a more accurate?" description of his intent because it occurred at the time of the incident, the judge noted.

Thompson about 11:45 p.m. Jan. 13 was called to go to the home of Judge Caretti's ex-wife, Lori Conway (no blood relation to Brenda Conway) of Franklin, after Lori Conway reported that one of her daughters texted her that Brenda Conway was drivng erratically and under intoxication traveling from a Caretti family wedding reception in Macomb Township. She was arrested after parking in the driveway of Lori Conway's home.

The defense attorneys, including Jeffrey Abood, contended that Thompson performed only one of three recognized sobriety tests, and the one he did perform, the "horizontal gaze nystagmus," used to measure involuntary jerking of the eyes, he did improperly.

The attorneys pointed out that Thompson also failed to give Conway a 15-minute observation period before issuing the preliminary breathalyzer test in which her blood-alcohol content measure .15 and 16 percent. The recording of the entire arrest process is only 12 minutes long.

Conway also took two other sobriety tests, counting backward and reciting the alphabet, in which she completed and made minor mistakes, although assistant Oakland County prosecutor Boyd White III said they were "poorly performed."

On the audio recording, Conway giggled at least once and performed the tests slowly.

White III disputed that the tests were insufficient or improperly performed but even if one or more are determined inadmissible, the arrest was legal due to the many pieces of evidence.

"You put them all together you have probable cause," White said. "No matter how you cut the cake, your honor, you have probable cause."

Most notable, White said, was that Thompson smelled the odor of intoxicants on her. "The smell of intoxicants is reasonable suspicion anytime," he said.

Regarding the 15-minute observation period, White said 12 minutes was sufficient because case law says only an "egregious" error warrants throwing out the evidence.

Caretti was investigated by the state Child Protective Services allegedly for knowingly allowing his daughters, aged 12 and 15 at the time, to drive with someone he knew or should have known was intoxicated. Results of that investigation are not made public by the state.